-
July 28th, 2009UncategorizedIn U.S. v. Covington, No. 08-10513 (April 22, 2009), the Court affirmed the convictions and sentence of a defendant charged with having hired a murderer to kill a girlfriend.
Covington was arrested and charged with assaulting his girlfriend. He allegedly hired a hitman to murder his girlfriend to avoid having her testify against him.
The Court found no abuse of discretion under FRE 404(b) and 403 in the admission of communications Covington had from jail with his ex-girlfriend, of a description of his prior assault, and of the gun he used in the prior assault. The Court recognized that prior domestic abuse evidence can be irrelevant and prejudicial in a narcotics prosecution. Here, however, this evidence was relevant to Covington’s motive to hire someone to kill his girlfriend. The motive was to silence the girlfriend.
The Court found a sufficient interstate nexus in Covington’s use the telephones because he called across state line to discuss the scheme. The FBI did not contrive to create an interstate nexus.
The Court further found an adequate agreement of payment for murder where Covington wired $300 that eventually reached his intended hit man. In addition, negotiations mentioned payment of six kilos of cocaine.
The Court affirmed the 40-year sentence. The Court rejected the argument that a prior conviction was constitutionally invalid and therefore should not have been counted at sentencing. The Court noted that Custis v. U.S. precluded the kind of challenge Covington raised. In addition, his guilty plea to a firearm in possession count amounted to an express admission that § 924(e) applied to him.
The Court rejected an improper "grouping" challenge. The Court noted that the two murder for hire counts should not have been grouped with the felon in possession of a firearm count, because the two offenses involved a different victim. The girlfriend was the victim of the two murder for hire offenses, while "society as a whole" is considered the victim of a felon in possession offense. Moreover, the motives were different. The murder for hire scheme intended to keep the girlfriend from testifying; Covington did not yet want her dead at the time of his pistol-waving assault. Finally, the Court found it reasonable for the sentencing court to run Covington’s sentences consecutively, and to impose the resulting 420-month sentence. -
July 23rd, 2009UncategorizedIn United States v. Shafer, No. 07–2574 (6th Cir. Mar. 3, 2009), Judges Moore, White, and Tarnow (E.D. Mich.) remanded a child-exploitation case for resentencing.
Conviction: Guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purpose of producing visual depiction of such conduct, and depiction was produced using material transported in interstate commerce—violation of 18 U.S.C. § 2251(a).
Original Sentence: 360 months.
Guidelines: Section 2G2.1. BOL 32. Final OL 41. CHC I. Range of 324 to 405. Stat max of 30 years.
Facts: Bad. Charge involved defendant photographing eleven-year-old boy masturbating.
Issue: Defendant objected to enhancement under Section 2G2.1(b)(2)(A)—if offense involved commission of a sexual act or sexual contact, +2 levels. Defendant argued sexual act/contact do not encompass self-masturbation. Need another person involved.
District Court: Applied enhancement. Found that sexual act requires one individual to make contact with another. But sexual contact is broader and covers self-masturbation. Also found that the entire pattern of conduct involving the victim was all part and parcel of the offense. There was "grooming" conduct to make the victim engage in the sexual behavior.
Appellate Court: 1) Sexual contact includes self-masturbation. But 2) requirements for sexual contact include an intent element. The person who is doing the touching must have a specific intent—e.g., to abuse, humiliate, or arouse the sexual desire of someone. District judge did not make findings regarding the eleven-year-old boy’s intent. Because of the boy’s age, appellate court unwilling to infer necessary intent. Could have been that boy sought only to please the defendant in a non-sexual way. Remanded for findings on intent. 3) There was no evidence that the defendant committed a sexual act or sexual contact during the commission of the offense, in preparation for the offense, or in the course of attempting to avoid detection/responsibility for the offense. Earlier sexual abuse may have made offense of conviction easier to commit, but that fact does not support a finding that the defendant committed the previous abuse with the intent to later have the victim self-masturbate for the offense.
Short Holding: Section 2G2.1(b)(2)(A) does not apply given this record.
Dissent: Judge White would affirm because she thinks the district court found the requisite intent.
